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Dr Rikard-Bell claims most accusations of child sex abuse are FALSE

In a number of Family Court cases, where claims of child sexual abuse have been made against a father, the court has switched care from the mother to the father after a recommendation by a child psychiatrist or psychologist. Jess Hill investigates the role of expert report writers in the way the court decides on claims of abuse.

The Family Court is one of the most controversial institutions in Australia. It’s also one of the least scrutinised—strict privacy laws make it extremely difficult to report on.

On Thursday 11 June, in a telephone link with senators for an inquiry into family violence, Australian of the Year Rosie Batty called for a Royal Commission into the Family Court, telling senators the institution is her ‘biggest area of concern’, and that it’s an area that is ‘beyond investigation, beyond reproach’.

‘There is a total disregard or a total ignorance of family violence being an issue,’ she said. ‘You’re viewed in court as likely to be lying to manipulate the system.’

In an earlier submission to the inquiry, the Family Court’s Chief Justice, Diana Bryant, wrote that allegations of secrecy or lack of transparency are ill-informed; proceedings are conducted in open court, and members of the public are welcome to attend. Reporting restrictions are designed, she said, to protect the people involved, especially children, from ‘sensationalist or prurient reporting of their dispute’.

Some of the most vexed cases that come before the court are those involving allegations of child sexual abuse. For years, there have been claims the Family Court is biased against parents who raise these allegations, and disbelieving of the children who make them. It’s a claim the Family Court strongly rejects.

In their criticism of the Family Court system, parents and academics have pointed particularly to the influence of some expert report writers, who are usually child psychiatrists and psychologists, and whose expert assessments can be pivotal to a court’s decision on how to allocate custody.

It’s not the Family Court’s job to assess whether allegations are true or false—instead, it has to assess whether a parent poses an unacceptable risk to a child. Expert report writers can help in this task by assessing a family’s dynamics and the substance of the abuse allegations. But amongst these experts, there are differing views on how likely it is that an allegation will be false.

Carolyn Quadrio, an expert report writer with several decades of clinical experience in child sexual abuse, says though some studies estimate anywhere between four and 20 per cent, research commonly shows that in custody cases, false allegations make up around 10 per cent of the total.

But Chris Rikard-Bell, an expert report writer who, over the past 25 years, has done roughly 2,000 evaluations for the Family Court, says in his experience, the vast majority of allegations of child sex abuse (which make up a minority of the court’s total caseload) turn out to be false.

‘I think in the Family Court,there are a lot of false allegations… In my experience, about 90 per cent are unfounded in this very small group that are highly conflicted. So, there is still sexual abuse and physical abuse that comes through, but a lot of the people who end up in the Family Court are highly motivated people, and highly competent people, so they're a different group from say the lower courts, or the Children's Court.'

The practices and opinions of expert report writers are at the centre of Background Briefing’s investigation, because of the strong influence they are said to have in the Family Court. In some cases, their perceived influence is so great, a negative assessment alone can be enough convince a parent to drop their case.

Such was the case with Tina*, and her daughter Lucy*. Tina was barely out of school when she married John*, and fell pregnant. Throughout the relationship, there was violence. ‘He'd kick animals, he'd lay into me while holding my daughter, it was just horrible,’ recalls Tina.

Tina left John a week before Lucy’s second birthday. For the next six months, John saw his daughter at least every week. During these stays, a Family Court judge would later write that John used Lucy as ‘a hostage in a power play with her mother’, and threatened to take her to Family Court to ‘get the child’.

Tina fled interstate with Lucy, and took out a three-year AVO. John then applied to the Family Court seeking orders for Lucy to live with him.

In his judgment on that case, Justice Mullane concluded that John was a ‘controlling and abusive man’, and that there was a danger that Lucy may become a victim of his abuse. Justice Mullane ordered supervised contact once a week for a year; if the father’s behaviour did not improve, that contact would end.

At the end of that year, Tina consented for John to have unsupervised contact with Lucy, because she thought she deserved to have her father in her life. It’s a decision she now deeply regrets.

When Lucy was three, she started making disconcerting comments about her dad touching her in ways she didn’t like. But it wasn’t until she was eight that she revealed how serious it was, after a personal development class at school.

‘When they started talking about sexual abuse,’ Lucy, now 18, recalls, ‘and where are your no-no zones, it suddenly clicked with me at eight years old that the things that were happening in my household, shouldn't be happening.’

Lucy told the school counsellor, who reported it to the principal. It was the first time Lucy had realised the touching was wrong. ‘I grew up being told that the things that were happening were part of a special bond between a father and a daughter, and I wasn't supposed to speak about it to anybody else, because it would ruin the secret.’

Tina went back to the Family Court to try to stop John’s access to their daughter. To help it assess Lucy’s allegations, the court appointed a child psychiatrist to write a single expert report. Evidently, this report writer was asked to assess the family dynamics, and the abuse allegations, and make suggestions regarding custody.

Tina felt sure the report writer would convey her daughter’s concerns to the court. ‘This report writer shook our hands, looked my daughter and myself in the eyes, and he said, “we will help you,”’ she says.

But when Tina received the report, she could barely believe what she was reading. ‘They painted him as gold, and made me look like a crazy, psychotic… and ludicrous, that's the words they used.’

In the report writer’s analysis,Tina was depicted as anxious, suggestible and over protective, and possibly suffering from psychosis.The history of domestic violence was all but eliminated, with only a passing reference to a relationship that was ‘long, convoluted and strained’.

The report said that when Lucy was interviewed alone, she became tearful talking about her father touching her private parts. When the child psychiatrist interviewed her alongside her father, he asked her twice if she was worried about him touching her in a bad way. Lucy avoided the questions.

‘It’s unnerving—like, when Dad's sitting in the room, you don't want to tell,’ says Lucy, ‘because he's the one who's doing it! And he's sitting there staring at you the whole time, monitoring what you're saying.’

The report writer said Lucy appeared ‘very guarded’ with her father, but that in his opinion, that was because she felt pressured by her mother to reject him. That pressure was also, he concluded, what led Lucy to make the abuse allegations.

In his recommendations to the judge, the expert report writer said Lucy should continue to spend regular weekends and half school holidays with her father, and that the mother should get counselling to help her support the father-daughter relationship. The final recommendation in the report also served as a warning.

‘If we ever mentioned that she was sexually abused ever again, and brought it up to the courts, then she would be removed from my care, and handed to him permanently. And I would have to seek supervised access, and close psychiatric help.’

Tina’s lawyer told her that with such a strong expert report against her, the Family Court would likely find in favour of the father. She was told to consent to unsupervised access, or risk losing custody of Lucy altogether. Afraid of what might happen, Tina took her lawyer’s advice. It would be years before Lucy mentioned the abuse again.

‘I didn't really talk about it after that, because I didn't want anybody to worry. I shut down and pretended nothing was happening.’

These are the sorts of cases that worry Professor Patrick Parkinson, a family law and child protection expert and former chairperson of the government advisory group, the Family Law Council.

‘In the last few years, I've noticed more and more cases where the court's being persuaded, usually by an expert report writer, that the abuse hasn't happened, they've switched the care from the mother to the father, and I'm seriously worried about this trend in the cases,’ he told Background Briefing.

‘It's not what we used to do. We used to put child protection first, and I think it is based upon a certainty about what has occurred, which is not justified by a serious examination of the facts, in some of these cases. It may have been in a few cases, but I think it has become all too common. And what some lawyers now tell their clients is, “If you make these allegations, you risk losing the care of your child.”’

Assessing whether a parent poses an unacceptable risk to a child is a complex, onerous task, not least because in most cases, the only evidence is the child’s disclosure. In the absence of physical evidence, expert report writers can play a pivotal role in the court’s decision-making process.

This is especially so, says Patrick Parkinson, because often the judge has no training in child development, and no expertise in child protection. ‘The reality is they are highly dependent on the expert evidence.’

In many cases, there is other evidence supplied to both the report writer and the court, like records from doctors, police and child protection. But even if child protection or police believe the child to be at risk of sexual harm, an expert report writer may disagree. When views differ, Patrick Parkinson says the court is likely to preference the views of the expert report writer, especially if they’re a child psychiatrist.

‘There is in the courts a bit of a hierarchy. At the bottom of the hierarchy there are social workers. Police maybe have slightly more credibility, but are there along with social workers. Psychologists (have) more credibility, but the gods of the Family Court are psychiatrists.’

Patrick Parkinson says the trouble with this hierarchy is that child psychiatrists may not be the best placed to assess whether a child has been sexually abused. ‘Now, let me say that the court is indebted to the psychiatrists who give evidence in these cases. It relies heavily on them, and many—maybe most—are extremely capable professionals. But actually, psychiatry does not provide necessarily very good training for identifying whether a six-year-old child has been sexually abused.’

The notion that expert report writers are given more due by the court is not accepted by the Family Court’s Deputy Chief Justice, John Faulks.

‘It's not the case that the judges always accept those opinions. Sometimes they do, sometimes they don't,’ he told Background Briefing. ‘It’s not up to (the expert report writers) to make the decisions—they can say, these things are consistent with something having happened. Typically for example, if there's an accusation a child has been abused, a report writer might say, “There was nothing in my observations of the child with the alleged abusing parent which would suggest this may have occurred. There was no fear,” a whole range of things.

‘Now in some cases it would be influential, in some cases it won't, in other cases it might have a medium influence. It isn’t a situation where you can have a one-size-fits-all. I’m sorry, that’s just not reality.’

For Lucy and Tina, the expert report—and their lawyer’s warning about its likely influence in the Family Court—was enough to scare them into silence for the next three years.

‘It definitely made me feel very betrayed,’ says Lucy. ‘The abuse obviously got worse—it went from being Daddy's little secret, to just full on—just awful abuse. It became very violent, and if I wouldn't comply, it was brought up that I wasn't allowed to speak about it, so maybe I should just shut up and let it happen, and noone would believe me anyway is what he kept telling me.’

As Lucy got older, the abuse became more explicit. ‘It did come to the stage where he was in fact having sex with me, and I got my period quite young, so it was scary to the point where I didn't even know if I'd come home pregnant.’

Lucy suffered her father’s abuse for three more years. Then when she was 13, her mother received a letter, saying her father was relinquishing custody. ‘I was just told I wouldn’t have to go back,’ says Lucy. ‘At first I was very cautious—I didn't believe it. I just looked at her and said, “Are you sure this time?’’’

Tina couldn’t believe it either. ‘With all the fighting, and what lengths he had gone to to get her—why would he suddenly just give it up?’ Now, five years later, Tina and Lucy both believe it may have been because Lucy was old enough to speak out.

Although her case never went to trial, Lucy says she feels betrayed by the whole Family Court process. ‘The fact that I had to be sent back and abused—that was something that they could have stopped,’ she says. ‘It felt really betraying, and now I've been asked now that I’m 18, if I want to go back and finish the report with the police, and I'm like, well, what's the point? Are they going to believe me, are they going to listen? I still don't have any more evidence than I did back then.’

*The identity of family members have been changed, in accordance with Section 121 of the Family Law Act.